G.R. No.

72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

FACTS:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance
to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB
on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as
heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya
with a translation in English submitted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the
disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I
earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu
City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share shall be given to me
to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and
Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591 ACEB. After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile
deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he
is merely a universal heir and (3) the widow and the adopted daughter have been pretirited.
Said motion was denied by the trial judge. After the denial of their subsequent motion for
reconsideration in the lower court, respondents filed with the Supreme Court a petition for
certiorari and prohibition with preliminary injunction which was subsequently referred to the
Intermediate Appellate Court by Resolution of the Court dated March 11, 1985. Respondent
Intermediate Appellate Court granted private respondents' petition and ordered the trial court
to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.
591 ACEB.

ISSUE: WON the adopted daughter has been preterited.

HELD:
YES. Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is
not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the
same rights and duties as if he were a legitimate child of the adopter and makes the adopted
person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived
of at least their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.